Twenty years ago, the Centers for Disease Control and Prevention (CDC) declared family planning and contraception services as 1 of 10 great public health achievements in the United States in the 20th century. Access to contraception is associated with reductions in teen pregnancy rates, improved health outcomes for women and their children, increased educational levels for women, enhanced economic security for women and their families, and other benefits that have led the US Agency for International Development (USAID) to declare family planning as a “best buy” for achieving the United Nation’s Sustainable Development Goals.
A new rule governing Title X of the Public Health Act is to be issued in January 2019. The proposed new rule that was available for public comment in 2018 suggests that federal policy makers may make it harder for women to access contraceptive services, despite evidence of the benefits to women, families, and the nation.
Recognizing contraception’s benefits, the Affordable Care Act included measures to make it easier to access contraceptive services. This included the requirement that all new private insurance plans cover comprehensive contraception services and products, without cost sharing. Exemptions were available for grandfathered plans and employers that are houses of worship, but the Supreme Court subsequently ruled in Burwell v Hobby Lobby Stores, Inc that this requirement violated the Religious Freedom Restoration Act, allowing expansion of eligible employers. The Obama administration developed rules for “accommodation” that would permit employers to object to offering contraception coverage but require their insurance plans to pay for women who wanted such coverage.
New rules issued by the Trump administration expanded access to exemption or accommodation to all nongovernmental employers and universities that have religious or nonreligious moral objections to contraception. These moral objections include “services which they [employers] consider to be abortifacient.” Note that what constitutes “abortifacient” is determined by the employer.
The Trump administration has proposed that women who cannot get coverage for contraception from their employers can use Title X–funded programs. But the demand for Title X services already exceeds the $286 million in available funding, and there may no longer be a guarantee that these programs will offer comprehensive contraception options.
Title X is part of the Public Health Service Act that became law in 1970 to ensure that “no American woman should be denied access to family planning assistance because of her economic condition.” It is administered by the Department of Health and Human Services (HHS) Office of Population Affairs (OPA), which sets the rules for determining which organizations receive the available funding. The rules governing Title X have heretofore required most grantees to offer comprehensive family planning services.
In June, the Trump administration replaced acting OPA deputy assistant secretary Valerie Huber—the founder of Ascend, the largest US and global abstinence-only education organization—with Diane Foley, MD, to oversee Title X. Foley is the former chief executive of Life Network, a Christian organization that operates “crisis pregnancy centers” that often have no professional staff and are unlicensed for clinical services. Huber remains in the office as senior policy advisor. Under this leadership, new proposed rules for Title X would
Change the eligibility for funding from programs that offer comprehensive contraception services to those offering the rhythm method of contraception and abstinence, despite their lower rates of efficacy. The proposed rule mandates counseling on “fertility awareness or natural family planning” (ie, rhythm method) and “sexual risk reduction” (ie, abstinence only). A 2007 evaluation of abstinence-only programs found no change in age of initiation of sex (65% of women and men had initiated sex by age 18 years) or number of sexual partners, but the risk of unintended pregnancies and sexually transmitted infections increased.
Eliminate the expectation that Title X organizations must comply with existing standards of quality family planning care written by HHS and CDC, including being able to provide clinical care.
Eliminate nondirective counseling on pregnancy options and prohibit abortion counseling and referrals.
Eliminate eligibility of funding for organizations providing abortions unless they are 100% physically and financially separate. The physical separation is likely to reduce the number of comprehensive family planning clinics because the cost of maintaining 2 separate clinics will be prohibitive to many.
Require any woman with a positive pregnancy test to be referred to prenatal care, even if she doesn’t want to continue the pregnancy.
Undermine the requirement of confidentiality for minors seeking contraception and require documentation of why parents or guardians should not be involved.
Under the proposed new rule, the number of comprehensive family planning clinics is likely to decline, as happened in Texas in 2011 when its legislature imposed new restrictions on family planning centers and slashed their funding by 66%. As a result, more than 80 centers closed. Between 2011 and 2014, the number of women using the most effective forms of birth control—intrauterine devices, implants, and injections—plunged by one-third, and births by poor women on Medicaid increased 27%.
A network of about 3000 religious-based crisis pregnancy centers stands ready to apply for Title X funding if the new rules eliminate the requirement for comprehensive contraception services. Crisis pregnancy centers provide pregnancy testing, ultrasounds, and free diapers. More than 200 Obria Medical Clinics advertise that they offer “well woman care” by physicians and nurse practitioners, but there is no mention of contraception. Although legal, crisis pregnancy centers’ approaches have been described as unethical. Crisis pregnancy center personnel are trained to not directly answer questions such as, “Do you provide abortions?” or “Can I get the birth control pill at your center?” Their answers are designed to have the woman come into the center, rather than provide specific answers. Once the woman comes in, the staff rely heavily on ultrasound images, strongly advocate that women continue their pregnancies, and try to delay a decision so that the women might go beyond the term when abortion is accessible.
What evidence is there that these nonclinics will receive Title X funding? The OPA just completed the 2018 proposal reviews and only awarded funding for 7 months. Although the 2018 grants went to only a few religious organizations, the limited award period will require a new competitive round of applications and the new Title X rule is expected to be finalized before the applications are reviewed. The OPA is trying to facilitate new applications by posting successful ones on its website. Religious organizations are also being encouraged to contact existing grantees to be included in their next applications.
The final rule is expected in January 2019. If it includes key components of the proposed rule that are outlined herein, a legal challenge is likely to be filed immediately upon the rule’s issuance. The new House of Representatives could hold public hearings and increase the visibility of the potential impact of the rule changes.
Some states are codifying into legislation the requirement that insurance companies cover contraception with no co-pays. But in states in which access to contraception and reproductive health services are most challenged, the proposed rule changes would continue to erode access. Before 2010, there was bipartisan support for reproductive health services as good for women, good for families, and good for the US economy. Today, the organizations that rely upon Title X funding and the women and families they serve hang in the lurch.
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